Journal on Firearms and Public Policy

Transcription

1 Journal on Firearms and Public Policy JFPP20.indb 1 9/8/ :39:41 PM

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3 Journal on Firearms and Public Policy Volume 20 The Journal on Firearms and Public Policy is the official publication of the Center for the Study of Firearms and Public Policy of the Second Amendment Foundation. Editor David B. Kopel, J.D. Independence Institute Publisher Julianne Versnel Gottlieb Women & Guns Magazine Board of Advisors Randy E. Barnett, J.D. Edward F. Leddy, Ph.D. David Bordua, Ph.D. Andrew McClurg, J.D. Sue Whimmershoff-Caplan, J.D. Glenn Harlan Reynolds, J.D. Brendan Furnish, Ph.D. Joseph P. Tartaro Alan M. Gottlieb William Tonso, Ph.D. Don B. Kates, Jr., J.D. Eugene Volokh, J.D. Gary Kleck, Ph.D. James K. Whisker, Ph.D. The Second Amendment Foundation sponsors this journal to encourage objective research. The Foundation invites submission of research papers of scholarly quality from a variety of disciplines, regardless of whether their conclusions support the Foundation s positions on controversial issues. Manuscripts should be sent in duplicate to: Center for the Study on Firearms and Public Policy, a division of the Second Amendment Foundation, N.E. Tenth Place, Bellevue, Washington or sent via to jvg@saf.org. JFPP20.indb 3 9/8/ :39:41 PM

4 This publication is copyrighted 2008 by the Second Amendment Foundation. All rights reserved. No part of this publication may be reproduced in any form or by any electronic or mechanical means including information storage and retrieval systems without written permission except in the case of brief quotations embodied in critical articles and reviews. Articles have been edited for space. The full version of these articles are available on The Second Amendment Foundation is a non-profit educational foundation dedicated to promoting a better understanding of our Constitutional heritage to privately own and possess firearms. For more information about Foundation activities, write to: Second Amendment Foundation, James Madison Building; N.E. Tenth Place; Bellevue, Washington Telephone number is (425) Additional copies of this publication may be ordered for $10.00 each. Please see www. saf.org for more research materials. This publication is distributed to academia and the book trade by Merril Press, P.O. Box 1682, Bellevue, Washington JFPP20.indb 4 9/8/ :39:41 PM

5 Journal on Firearms & Public Policy Volume 20 Fall 2008 DISTRICT OF COLUMBIA AND ADRIAN M. FENTY, MAYOR OF THE DISTRICT OF COLUMBIA, Petitioners, v. DICK ANTHONY HELLER Respondent. A Heller Overview David B. Kopel 7 Friends of the Second Amendment: A Walk through the Amicus Briefs in D.C. v. Heller Ilya Shapiro 15 Plaintiff s Brief 43 Amici in Support Of Plaintiff American Bar Association 83 Brady Center to Prevent Gun Violence 98 Respondent s Brief 121 Amici in Support of Respondent Citizens Committee for the Right to Keep and Bear Arms 161 Criminologists & Claremont Institute 185 ILEETA 210 Second Amendment Foundation 241 JFPP20.indb 5 9/8/ :39:41 PM

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7 A Heller Overview By David B. Kopel This Article provides a brief summary of the Supreme Court s decision in District of Columbia v. Heller, some background about the case, and some thoughts about issues likely to be raised post-heller litigation on the Second Amendment.The case that became D.C. v. Heller was the brainchild of Robert A. Levy, an attorney who is a Senior Fellow in Constitutional Studies at the Cato Institute, a Washington think tank. Levy also serves on the Board of Directors of the Institute for Justice, a libertarian public interest law firm in Washington, D.C. Levy teamed up with Clark Neilly, a staff lawyer at the Institute for Justice, and together they found Alan Gura, who served as the lead attorney on the case. The case was filed in the federal district court for the District of Columbia in February There were six plaintiffs in the original case, which was then known as Parker v. District of Columbia; lead plaintiff Shelly Parker was a neighborhood activist who had been threatened by drug dealers. The plaintiffs challenged three separate parts of D.C. s gun control laws: The ban on registration (which is required for legal possession) of any handgun that was not already registered in 1976 to its current owner. In the fall of 1976, the D.C. City Council had banned handguns, but had allowed current owners to keep their current handguns. The gun storage law, which required that all lawful firearms (registered rifles, registered shotguns, and registered pre-1977 handguns) in homes in D.C. be kept unloaded, and either trigger-locked or disassembled that all times. The prohibition on functional firearms had no exception to allow use of a gun self-defense within the home. The D.C. law for the licensed carrying of handguns. The law required a license, which was almost never granted, to carry a handgun. Without the license, it was illegal for the owner of a registered handgun to move the handgun from one room to another within her own home. In March 2004, federal district Judge Emmet Sullivan ruled in favor of the D.C. government. His opinion stated that the Second Amendment has no application except to persons in a militia, and that none of the six plaintiffs were members of the D.C. militia. (All the documents from the entire case are available at dcguncase.org.) - 7- JFPP20.indb 7 9/8/ :39:41 PM

8 Journal on Firearms & Public Policy Volume Twenty The case was appealed to the federal Circuit Court of Appeals for the District of Columbia. Circuit Court of Appeals cases are heard by a randomly-selected panel of three judges, drawn from the pool of all the appellate judges in the Circuit. Oral argument for the appeal was held on December 7, 2006, and the appellate panel announced its decision on March 9, Senior Circuit Judge Laurence H. Silberman wrote the decision for the 2-1 majority. The legal doctrine of standing prevents plaintiffs from bringing a case in which they do not have a genuine, personal, legal interest. If the government does something which harms Mr. X, then Mr. X can sue. But Ms. Y cannot sue, even if the oppression of Mr. X offends her sense of constitutional propriety. The Circuit Court held that five of the six plaintiffs did not have standing, and so the Court could not address the merits of their constitutional claims. Relying on D.C. Circuit precedent for standing in Second Amendment cases, the Parker court ruled that the mere threat of a criminal prosecution (as opposed to an actual prosecution) was insufficient for standing. Thus, although the D.C. government had explicitly threatened to criminally prosecute Ms. Parker and others if they did what they wanted to do (e.g., have operable firearms in their homes), the plaintiffs did not have standing. The lone plaintiff with standing, according to the appellate court, was Dick Heller. He had actually attempted to register a gun (a 9-shot.22 caliber revolver) which he already owned, and kept outside the District. Because the D.C. Metropolitan Police Department had denied his registration application, Heller had suffered a concrete legal injury as the result of the D.C. government s decision, and so he had standing. Reaching the merits of the case, the appellate panel ruled 2-1 that the Second Amendment applies to ordinary individuals. The court held that the handgun ban, the self-defense ban, and the carrying ban (as applied within the home) were unconstitutional. In September 2007, D.C. petitioned the Supreme Court for a writ of certiorari. This is the standard procedure by which an appeal is brought to the Supreme Court. D.C. Mayor Adrian Fenty rejected the entreaty of the Brady Campaign not to appeal the case. According to the Associated Press, the Brady group urged Fenty just to accept the D.C. Circuit decision, rather than give the Supreme Court a chance to make a nationallyapplicable ruling on the Second Amendment. Indeed, ever since the Brady Campaign was created in the 1970s, as the National Council - 8- JFPP20.indb 8 9/8/ :39:41 PM

9 Ko p e l A He l l e r Ov e rv i e w to Control Handguns, the group had worked assiduously to keep the Second Amendment out of the Supreme Court. Yet the Supreme Court granted certiorari in November The name for the case was recaptioned District of Columbia v. Heller. Mr. Heller was the only one of the original plaintiffs left. Because D.C. was the losing party at the previous stage of the case, and had filed the petition for the writ of certiorari, D.C. s name now appeared first in the caption. In the case, D.C. is petitioner and Heller is respondent. Briefs for the parties, as well as 67 amicus briefs, were filed in early 2008, and oral argument was held on March 18, The decision in District of Columbia v. Heller was the last one announced at the end of the Supreme Court s term. Justice Scalia, recognized by his colleagues as the Court s expert in firearms law and policy, wrote the majority opinion, which was joined by Chief Justice Roberts, and by Justices Thomas, Kennedy, and Alito. The opinion held that the Second Amendment guarantees an individual right of all Americans, and is not limited to militiamen or National Guardsmen. The D.C. ordinances which ban handguns, and which prohibit self-defense in the home with any gun at all, violate the Second Amendment, the Court ruled. Justice Stevens authored a dissenting opinion, joined by Justices Souter, Ginsburg, and Breyer; they argued that the Second Amendment protects only a miniscule individual right which applies, at most, to actual militia duty. Justice Breyer wrote an additional dissent, which was joined by the other three dissenters. They contended that even if the Second Amendment protects all law-abiding citizens, the handgun ban should be upheld because it is reasonable. Heller was a decision clearly influenced by tremendous amount of scholarly research on firearms law and policy in the last three decades. Justice Scalia s majority opinion cited the research of Stephen Halbrook, Joseph Olson, Clayton Cramer, Joyce Malcolm, Eugene Volokh, Randy Barnett, and Don Kates. (The last three serve on the Board of Advisors of the Journal on Firearms and Public Policy.) Justice Breyer s dissent, surveying social science research, cited, among others, Gary Kleck (also on the Board of Advisors of this Journal) and me (my amicus brief for the International Law Enforcement Educators and Trainers Association and other pro-rights law enforcement groups). The Scalia opinion begins with meticulous textual analysis of the words of Second Amendment. The analysis was supplemented - 9- JFPP20.indb 9 9/8/ :39:41 PM

10 Journal on Firearms & Public Policy Volume Twenty by careful attention to the many early American and English sources which demonstrated the meaning of the various words. Both Scalia and Stevens agree that there are times when the context of bear arms shows that it means carry guns while serving in the militia, and other times when the context shows a broader meaning, as in carrying guns while hunting. Stevens insists on an interpretive rule by which bear arms must mean militia-only unless there is a specific invocation of non-militia use. He further argues that the first clause of the Second Amendment means that the main clause must be militia-only. Scalia argues that the first clause points to an important purpose of the right to keep and bear arms, but does not limit the right to only militia uses. Both Scalia and Stevens brush off the collective right theory of the Second Amendment as obviously wrong. Under the collective right theory, no individual has a Second Amendment right; rather the right belongs only to state governments. Scalia and Stevens strongly disagree about the nature of the Second Amendment individual right. Scalia sees the right as a normal right, akin of the individual right of freedom of speech or free exercise of religion. Stevens believes that the Amendment pertains only to individual gun ownership for purposes of militia service. He does not explain the scope of this militia-only right. English legal history is an important part of both the Scalia majority and the Stevens dissent. Scalia points to the 1689 English Declaration of Right, and to William Blackstone s very influential treatise, as proof of common law right to own firearms for personal defense. Blackstone had explained that the Declaration of Right protects the natural right of resistance and self-preservation. Stevens retorts that the Second Amendment was not written to address self-defense, but instead was written in response to state ratification conventions concerns about the potential that the new U.S. federal government would abuse its extensive powers over the state militia. After analyzing the text and the pre-1791 history of the Second Amendment, the majority opinion details the interpretation of the Second Amendment in the first half of the nineteenth century. Quoting the words of St. George Tucker, William Rawle, and Joseph Story, Justice Scalia shows that every legal scholar (except for the obscure Benjamin Oliver), along with state and federal courts, recognized the Second Amendment as an individual right to have guns for various purposes, including self-defense JFPP20.indb 10 9/8/ :39:41 PM

11 Ko p e l A He l l e r Ov e rv i e w The Scalia opinion continues with explication of the public view of the Second Amendment in the latter part of the nineteenth century. After the Civil War, Congress passed the Freedmen s Bureau Act of 1866, the Civil Rights Act of 1871, and then the Fourteenth Amendment--all with the explicit purpose of stopping southern governments from interfering with the Second Amendment rights of former slaves to own firearms to protect their homes and families. All the scholarly commentators of the late 19 th century including the legal giants Thomas Cooley and Oliver Wendell Holmes, Jr. recognized the Second Amendment as an individual right. The Stevens opinion is at its weakest on the nineteenth century issues. At most, Stevens shows that some of the sources cited by Scalia are not necessarily incompatible with the narrow individual right. But Stevens never really addresses Scalia s proof that the overwhelming body of nineteenth century legal writers, including judges, viewed the Second Amendment as a broad individual right. Justice Stevens examination of legal sources is highly selective. For example, the great Justice Joseph Story wrote two legal treatises on the U.S. Constitution. The majority opinion quotes both treatises, and the latter treatise plainly describes the Second Amendment as an ordinary individual right. The Stevens opinion only discusses the first treatise, which (if tendentiously read) is ambiguous enough not to rule out the narrow individual right. Significantly, the Heller majority observes that the Constitution does not grant a right to arms. Instead, the Constitution simply recognizes and protects an inherent human right: it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it shall not be infringed. The Stevens dissent places great reliance on its claim that the Supreme Court s 1939 decision United States v. Miller had conclusively found that Second Amendment has no application outside the militia. But as Justice Scalia points out, the Miller opinion turned on whether the particular type of gun was protected by the Second Amendment, and did not declare that only militiamen had a right to arms. Besides, Scalia notes, the reasoning in Miller was cursory and opaque. Significantly, as detailed in a law review article cited by Justice Scalia, Miller was apparently a collusive prosecution in with the defendants lawyer and the trial judge cooperated with the U.S. Attorney s scheme to send the weakest possible Second Amendment case to the Supreme Court as a test case, thus ensuring that the Na JFPP20.indb 11 9/8/ :39:41 PM

12 Journal on Firearms & Public Policy Volume Twenty tional Firearms Act of 1934 would be upheld. Miller s lawyer did not even present a brief to the Supreme Court. In response to Justice Stevens complaint that hundreds of judges have relied on the narrow individual rights interpretation of Miller, Scalia fires back: their erroneous reliance upon an uncontested and virtually unreasoned case cannot nullify the reliance of millions of Americans (as our historical analysis has shown) upon the true meaning of the right to keep and bear arms. Interestingly, Justice Stevens supplies a long footnote of some of the lower federal court decisions which have supposed relied on Miller. Over half the cases in the footnote are collective right cases which claim that there is no Second Amendment individual right (not even a right for militiamen). All nine Justices of the Supreme Court agree that there is at least some individual right in the Second Amendment. None of the Justices claim that Miller provides an iota of support for the state government collective right theory. It is difficult to see why the erroneous lower court collective right precedents are treated with such deference in the Stevens opinion. The Scalia opinion provides a definitive construction of the meaning of Miller: We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as shortbarreled shotguns. Finally, the opinion addresses the particular laws being challenged in the Heller case. The handgun ban is a violation of the Second Amendment because it a prohibition of an entire class of arms that is overwhelmingly chosen by American society for that lawful purpose. The trigger lock law is unconstitutional because it prohibits selfdefense. One of the important aspects of Heller is making clear that self-defense itself is a constitutional right. As for the handgun carry law, the Scalia majority accepts Mr. Heller s concession that he would be content (for purposes of this particular case) to have a permit to carry in his home. The majority opinion states that Heller must be issued a home-based carry license, unless there is some reason why he is ineligible (e.g., a felony conviction). In response to the Supreme Court decision, the D.C. City Council amended the carry law so that licenses are not needed for carry in one s home. D.C. and its amici had argued that a handgun ban was alright because people could still have long guns for self-defense in the JFPP20.indb 12 9/8/ :39:41 PM

13 Ko p e l A He l l e r Ov e rv i e w home. But the Heller majority observed: There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upperbody strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police. Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid. The dissenting opinion written by Justice Breyer contends that courts should perform an ad hoc balancing test on the merits of gun bans or gun controls. Detailing the social science evidence which had been presented by the parties and their amici, Justice Breyer writes that there is lots of social science on both sides of the issue. Accordingly, the courts should not interfere with the D.C. City Council s decision.justice Scalia responds that the Breyer approach would negate the decision to enact the Second Amendment: We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding interest-balancing approach. The very enumeration of the right takes out of the hands of government even the Third Branch of Government the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. The Heller decision is very clear that not all gun controls are unconstitutional. Bans on dangerous and unusual weapons or weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns are valid. The Heller opinion does not explicitly rule on the federal ban on machine guns manufactured after 1986, but the opinion can be read to imply that the automatic M-16 rifle can be outlawed. It is unclear how courts will resolve challenges to bans on nonautomatic guns, such as small handguns (dubbed Saturday night specials by the gun ban lobbies), or cosmetically incorrect guns ( assault weapons ), or centerfire rifles ( sniper rifles ). The broader the scope of a gun ban, the more likely a court following the Heller decision would find that the prohibition involves guns typically possessed by law-abiding citizens for lawful purposes JFPP20.indb 13 9/8/ :39:41 PM

14 Journal on Firearms & Public Policy Volume Twenty As for the constitutionality of other gun controls: nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. By affirming the validity of bans on gun carrying in sensitive locations such as schools and government buildings, the Court seems to imply that a total ban on gun carrying in ordinary public places is unconstitutional. Nothing in the opinion suggested that there was a constitutional problem in requiring licenses for gun carrying. Very significantly, Heller did not attempt to answer the question of whether the Fourteenth Amendment makes the Second Amendment enforceable against state and local governments. By longstanding Supreme Court interpretation, each of the provisions of the Bill of Rights applies directly only to the federal government. A provision becomes a limit on state and local governments only if the Supreme Court chooses to incorporate that provision into the Fourteenth Amendment (which forbids states to deprive persons of life, liberty, or property without due process of law). The Supreme Court has not definitively ruled on whether the Second Amendment is incorporated. Some 19 th century cases rejected applying the Second Amendment to the states, but these cases predate the Supreme Court s current method of Fourteenth Amendment analysis. The Second Amendment Foundation and the National Rifle Association are already bringing legal cases against local gun bans, such as Chicago s handgun ban, and San Francisco s gun ban for residents of public housing. These cases may give the Supreme Court the opportunity to issue a decisive ruling on incorporation JFPP20.indb 14 9/8/ :39:41 PM

15 Friends of the Second Amendment: A Walk through the Amicus Briefs in D.C. v. Heller By Ilya Shapiro This Article summarizes each of the dozens of amicus brief filed in District of Columbia v. Heller. It was written before the Heller decision was announced. Ilya Shapiro is Senior Fellow in Constitutional Studies at the Cato Institute, and Editor-in-Chief of the Cato Supreme Court Review. Research assistance on this article was provided by Seth Ayarza, Jonathan Blanks, Samuel Debbeh, and Rachel Maxam. Keywords: Second Amendment, Supreme Court, amicus brief, District of Columbia, handgun prohibition, self-defense The Supreme Court s grant of certiorari in the D.C. Gun Ban Case set off a media frenzy typically reserved for cases involving such culture-war touchstones as abortion, affirmative action, and prayer in schools. And indeed, as Barack Obama discovered to his chagrin when he commented on bitter Pennsylvanians who cling to their guns, the right to keep and bear arms touches a deep nerve in the American polity. Also clinging to particular views of gun rights are the many lawyers, government officials, and political activists of all stripes who generated a record 68 amicus curiae briefs. (The Michigan racial preference cases, Gratz v. Bollinger, 539 U.S. 244 (2003) and Grutter v. Bollinger, 539 U.S. 306 (2003), together generated 104 amicus briefs 64 in Gratz, 40 in Grutter but these cases were consolidated for argument and neither one garnered more than Heller has alone.) It is striking to see so many briefs running in opposite directions. There is no agreement on any of the major issues before the Court, such as what the Founders had in mind in writing the Second Amendment, the application of the Amendment to the District of Columbia (and, by implication, to the states), the social science findings about whether gun control reduces violence, and on the constitutional meaning if any of Congress s past adoption of gun control laws. The core issue is the nature of the right that the Second Amendment recognizes: the D.C. city government ties gun possession to military service; opponents to the D.C. handgun ban label gun pos JFPP20.indb 15 9/8/ :39:41 PM

16 Journal on Firearms & Public Policy Volume Twenty session as an essential part of personal liberty no less than other parts of the Bill of Rights. Plenty of briefs on both sides detail the history of gun rights in colonial times through the present day. (The Cato Institute filed a brief supporting the Respondent, Dick Heller, that focuses on the right to have and use arms in England and America leading up to and during the Founding Era. In the interest of full disclosure, I should note that I played a small role in reviewing and commenting on this brief s final drafts.) Other briefs focus on linguistics, or on how the Second Amendment must mean something different now than when civilians and military personnel used essentially the same arms. Though the Court is expected to opt for the individual, private right to have guns, the briefs again divide on how to evaluate laws that infringe on this right. Should there be a reasonableness standard or strict scrutiny? Whatever the standard, if the D.C. ban survives, is anything left of the Second Amendment right? The amici (19 for the District, 48 for the challengers to the handgun ban, and one for the federal government styled as not taking sides) not only echo the fundamental disagreement on the nature of the right and standard of review, but extend it. Solicitor General Paul Clement urges the Court to find an individual right to possess handguns for self-defense in the home, but also suggests that the D.C. Circuit used the wrong bright-line rule, and so the Court should remand for review under a weaker standard. Responding to the Solicitor General proposal, many of Respondent s amici return considerable fire. The Goldwater Institute, for example, assails the government for its uncomfortable straddle, accusing the S.G. of advancing arguments that fail on principle and logic or that rise from flawed premises. One notable amicus brief is signed by one Richard B. Cheney, wearing his other hat as President of the Senate, along with a majority of the members of both the House and the Senate. That brief explicitly endorses Judge Silberman s ruling, advocating a repudiation of the handgun ban in light of Congress s pro-individual rights legislation. Not surprisingly, a group of Democratic Representatives took it upon themselves to offer a contrary interpretation of Congressional activity. Among the amicus briefs are competing arguments from former high-ranking Justice Department officials, contradictory interpretations of empirical evidence relating to gun violence, and the pros and cons of whether guns cause more violence against women, gays, racial and religious minorities, the elderly, and the disabled. Linguists JFPP20.indb 16 9/8/ :39:41 PM

17 Sh a p i r o Am i c u s Br i e f s in D.C. v. He l l e r battle grammarians, while public health officials reach no more consensus than historians or criminologists. There is no agreement on the correct interpretation of the Court s 1939 and previous rulings on the Second Amendment, and the degree to which the current Court should be bound by those rulings. State and local governments and prosecutors also line up on both sides, foreshadowing the next stage of litigation. Many (I daresay most) of the amicus briefs repeat arguments spelled out more than adequately in the parties briefs and were likely filed so the particular organization could say to its supporters/prospective donors that it took a stand on this high-profile case. But a not insignificant number of the briefs should genuinely help the Court write its opinion. And so here is a compendium of amicus briefs in D.C. v. Heller. For lack of a better organizing principle, I list them alphabetically, first the Petitioners amici, then the Respondent s, with the U.S. Government bringing up the rear. In addition to a summary of the argument in each brief, I provide the amici s interest if that is not readily apparent, and any items of note (interesting facts, etc.) about the brief. I hope that, when read in the light of the Court s opinions in the case, this Article can serve as a guide for counsel and potential parties in the Second Amendment litigation that is sure to follow. PETITIONERS AMICI 1. Am e r i c a n Ac a d e m y o f Pediatrics, Th e So c i e t y Fo r Ad o l e s c e n t Me d i c i n e, Th e Ch i l d r e n s De f e n s e Fu n d, Wo m e n Ag a i n s t Gu n Vi o l e n c e, Yo u t h Al i v e! Interest: These non-profit organizations are committed to the health, safety and wellbeing of America s children and youth, and to preventing youth violence and injury by removing handguns from homes and communities across the country. Argument: Handguns are more lethal than other types of firearms and are particularly dangerous to children and youth, especially in the home. Handguns increase the likelihood and deadliness of accidents involving children because children cannot be taught gun safety. Guns make suicide more likely and suicide attempts more injurious to children and adolescents. D.C. s gun law is reasonable because firearms and especially handguns increase homicide and assault rates among America s youth. Contrary to the popular myth that guns are necessary in the home for self-defense, one study found that there are four unintentional shootings, seven criminal assaults JFPP20.indb 17 9/8/ :39:41 PM

18 Journal on Firearms & Public Policy Volume Twenty or homicides, and 11 attempted or completed suicides for every time a gun is used in self-defense in the home. 2. American Bar Association Interest: The ABA is concerned that a decision favoring Heller will undermine stare decisis by rejecting a long and consistent line of precedent. The ABA supported legislation that eventually became the Federal Gun Control Act of Argument: The decision below undermines the rule of law by failing to provide special justifications for abandoning longstanding precedent upon which legislators, regulators, and the public have relied. The D.C. Circuit decision would compound the disruption of the regulatory system critical to public safety developed in reliance on judicial precedent. The lower court does not create an objective, reliable, and intelligible definition of Arms and departs from the standard in Miller, which is whether use or possession of the firearm has a reasonable relationship to the preservation or efficiency of a well regulated militia. The lower court s decision will entangle courts in factual and policy determinations more appropriately left to state and local legislatures. 3. Am e r i c a n Je w i s h Co m m u n i t y, Ed u c a t i o n a l Fu n d t o St o p Gu n Vi o l e n c e e t a l. (63 a m i c i ) Interest: Amici are religious, civic, community, and civil rights groups and group representatives as well as victims and families of victims of gun violence with an interest in stemming the tide of gun violence that threatens lives and communities. Amici groups include the D.C. Statehood Green Party, the Gray Panthers, the Methodist Federation for Social Action, and the Baptist Peace Fellowship of North America. Argument: The Framers adopted the division of authority between the States and the federal government to ensure protection of our fundamental liberties. It also protects state authority to enact and enforce legislation to safeguard life, liberty, and property in light of local conditions and preferences to which the States are often uniquely suited to respond. The Second Amendment is a limit on federal authority to interfere with gun possession by individuals, but only when the interference would intrude on state militia authority not a limit on state and local authority to regulate in the first instance. The Framers borrowed heavily from pre-constitutional statutes and state militia laws that had restrictions on firearms. To read the Second Amendment as providing arms so that militias can JFPP20.indb 18 9/8/ :39:41 PM

19 Sh a p i r o Am i c u s Br i e f s in D.C. v. He l l e r quell insurrection, while at the same time facilitating insurrection, makes no sense. Nations sharing our common law heritage, including Canada, Great Britain, and New Zealand have handgun bans, and Austria and South Africa also strictly regulate firearms. 4. Am e r i c a n Pu b l i c He a lt h As s o c i a t i o n; Am e r i c a n College o f Pr e v e n t i v e Me d i c i n e; Am e r i c a n Tr a u m a So c i e t y; Th e Am e r i c a n Association of Suicidology Interest: These four organization aim to protect Americans from preventable health threats, including firearm-related injuries. Argument: Public health research may be relevant to assessing the constitutionality of the D.C. regulations. Guns in the home increase the risk of suicide, homicide, and death from accidental shooting. D.C. s laws appear to have reduced suicide and homicide rates. 5. Brady Center to Prevent Gun Violence, et al. Interest: In addition to the Brady Center, amici are nine police organizations. Argument: Read to give meaning to all of its words, the Second Amendment guarantees no right to possess firearms unless in connection with service in a state-regulated militia. Miller affirmed the Second Amendment s express militia purpose. The well-regulated militia is an organized military force, not an unorganized collection of individuals, so the phrase keep and bear arms refers to possession and use of weapons for military purposes. The Second Amendment was drafted to respond to Anti-Federalist fears that Congress would fail to arm the militia. Madison s initial proposal treated bearing arms as synonymous with rendering military service and debates at the convention reflected view that the Second Amendment only related to militia use. The guarantee of the right to the people is entirely consistent with the militia purpose interpretation. The Court should continue to entrust gun regulation in the interest of public safety to state and local legislators as it has for more than 200 years. 6. City of Chicago Interest: Chicago has similar regulations to D.C. and is concerned that an affirmance would result in challenges to its laws. Argument: The Second Amendment is a federalism provision as identified by the text, historical context and the practice of state and local governments. This federalist objective of the Second Amendment was not altered or abandoned by the adoption of the Fourteenth Amendment and accordingly, the Second Amendment JFPP20.indb 19 9/8/ :39:41 PM

20 Journal on Firearms & Public Policy Volume Twenty should remain unincorporated against the States. For example, this Court held that the Second Amendment did not restrict the State of Illinois s authority to prohibit 400 armed men from marching through the streets of Chicago. Presser v. Illinois, 116 U.S. 252 (1886). The history of the Second Amendment demonstrates that any private right to own guns outside of a militia context is not fundamental. 7. D.C. Ap p l e s e e d Ce n t e r f o r Law a n d Ju s t i c e, D.C. Ch a m b e r o f Co m m e r c e, Fe d e r a l Ci t y Co u n c i l, D.C. f o r De m o c r ac y, D.C League of Women Voters, Washington Council of Lawyers Interest: The D.C. Appleseed Center provides pro bono representation and works on public policy issues. The D.C. Chamber of Commerce has an interest in deference to local decision-making. The Federal City Council, D.C. for Democracy, and D.C League of Women voters are non-partisan groups devoted to local welfare and safety. The Washington Council of Lawyers is a public interest law firm. Argument: The Court should accord deference to local officials exercise of their police powers. Even if the D.C. Circuit s decision stands, any private right to keep and bear arms must be subject to reasonable regulation for the purpose of public safety. The District s regulation is reasonable because it restricts access to only one category of weapons while still permitting use of other firearms. The statutes at issue strike a reasonable balance between the exercise of the police power and any legitimate private right to self-defense in the home. Many other clauses of the Constitution are subject to reasonable restriction in furtherance of public safety. For example, the Free Speech Clause permits reasonable restrictions on time, place and manner of speech. 8. District Attorneys (18) Interest: District attorneys place a high priority on the successful prosecution of criminals who commit gun-related offenses. They have an interest here because an affirmance could cast doubt on gun laws critical to public safety. Included in this group are the DAs responsible for Atlanta, Boston, Chicago, Dallas, Detroit, Minneapolis, New York City, Oakland, San Diego, San Francisco, and the Maryland suburbs of Washington, D.C. Argument: The Court should not provoke constitutional challenges of criminal gun laws nationwide by introducing uncertainty into a well-settled area of the law. The Court should not needlessly hinder prosecutors ability to enforce criminal firearm laws. Criminal firearms laws have withstood repeated Second Amendment chal JFPP20.indb 20 9/8/ :39:42 PM

21 Sh a p i r o Am i c u s Br i e f s in D.C. v. He l l e r lenges in state and federal courts. These decisions were made on the assumptions that: a) the Second Amendment provides only a militia-related right to bear arms and does not apply to state or local governments; and b) that the restrictions bear a reasonable relationship to protecting public safety and thus do not violate a personal constitutional right. 9. Former Department of Justice Officials Interest: Amici, including Janet Reno, Nicholas Katzenbach, Jamie Gorelick, Warren Christopher, and Seth Waxman, submit this brief to express their view that federal, state, and local gun control legislation is a vitally important law enforcement tool used to combat violent crime and protect public safety. They disagree with the current position of the DOJ that the Second Amendment protects an individual right to keep and bear arms for purposes unrelated to a State s operation of a well-regulated militia. Argument: The Second Amendment does not protect firearms possession or use that is unrelated to participation in a well-regulated militia. This is the position of the Department of Justice Office of Legal Counsel and for decades the position maintained by the DOJ. Congress has enacted a series of statutes regulating firearms possession and use. In upholding the National Firearms Act, the Supreme Court agreed that the scope of the right to keep and bear arms is limited to furthering the operation of a well-regulated militia. In 1965 the Office of Legal Counsel stated, Both the States and the Congress were preoccupied with the distrust of standing armies and the importance of preserving State militias. 10. Historians (15) Interest: Amici, led by Jack Rakove, have an interest in the Court having an informed understanding of the history that led to the adoption of the Second Amendment. Argument: Even after the English parliamentary bill of rights of 1689 allowed certain classes of Protestant subjects to keep arms, British constitutional doctrine and practice subjected the right to extensive legal regulation and limitation. The first American Bills of Rights made no mention of a private right to keep arms and the individual ownership of firearms was not an issue at the Federal Convention of The sole reference to a private right to arms appears in the draft of the Virginia Constitution that Thomas Jefferson prepared while in Philadelphia writing the Declaration of Independence. The right to keep and bear arms became an issue JFPP20.indb 21 9/8/ :39:42 PM

22 Journal on Firearms & Public Policy Volume Twenty only because the Constitution proposed significant changes in the governance of the militia, an institution previously regulated solely by state law. Standing armies were perceived as a threat to liberty by the Anti-Federalists, so they wanted their militias protected. Text and context both establish that the dominant issue throughout the period of ratification was the future status of the militia, not the private rights of individuals. James Madison s original draft of the second amendment does not support an individual rights interpretation. 11. Ma j o r U.S. Cities (Ba lt i m o r e, Cl e v e l a n d, Lo s An g e l e s, Mi l w a u k e e, Ne w Yo r k, Oa k l a n d, Ph i l a d e l p h i a, Sa c r a m e n t o, Sa n Fr a n c i s c o, Se at t l e, Tr e n t o n), US Co n f e r e n c e o f May o r s, Le g a l Co m m u n i t y Ag a i n s t Vi o l e n c e Interest: Amici are eleven of America s largest cities actively engage in efforts to reduce the costs inflicted by gun violence upon local, and especially urban, communities. The Conference of Mayors is a non-partisan organization interested in maintaining flexibility in local law. The Legal Community Against Violence is a public interest law center devoted exclusively to providing legal assistance in support of gun violence prevention. Argument: America s cities face substantial costs from gun violence and must have the flexibility to regulate guns to protect against loss of life, threats to public safety, killing of police officers, and crippling health care and economic costs posed by certain types of guns. The Court s precedents firmly establish that the Second Amendment imposes no barrier to state and local regulation of firearms and the Amendment should not limit the options available to cities to address gun violence. 12. Members of Congress (18 Democratic Representatives) Interest: Congress has, for decades, exercised the power assigned to it by the Constitution to regulate, and in some cases ban, the use or possession of certain weapons. Argument: The decision by the Circuit Court is an unwarranted break with precedent and fails to accord appropriate deference to legislative judgments about the rights conferred by the Second Amendment. Even if Second Amendment rights were implicated, the Court of Appeals failed to apply an appropriate level of scrutiny. The Supreme Court has never construed the Second Amendment as applicable for purely private use. In Lewis, the Court applied rational basis scrutiny to a statute prohibiting certain people from possessing firearms. Deference to Congress as an interpreter of the JFPP20.indb 22 9/8/ :39:42 PM

23 Sh a p i r o Am i c u s Br i e f s in D.C. v. He l l e r Constitution, in appropriate circumstances, is entirely consistent with the Court s role, articulated in Marbury v. Madison. 13. NAACP Le g a l De f e n s e & Ed u c a t i o n a l Fu n d Interest: The effects of gun violence on African-American citizens are particularly acute; in 2004 alone, all but two of the 137 firearm homicide victims in D.C. were African-Americans most of whom were between the ages of 15 and 29. Argument: The Court has never invalidated a firearm restriction on Second Amendment grounds and this clear and established understanding of the Second Amendment should not be disturbed. Overturning the precedent set in Miller would produce substantial upheaval in the manner in which firearms are regulated nationwide and would unduly limit the ability of States and municipalities to address the problem of gun violence. The problem of gun violence disproportionally affects African-Americans. Justice Powell said: With respect to handguns, in contrast to sporting rifles and shotguns, it is not easy to understand why the Second Amendment, or the notion of liberty, should be viewed as creating a right to own and carry a weapon that contributes so directly to the shocking number of murders in our society. The language of the Second Amendment has consistently been interpreted to permit regulations governing an individual s possession or use of firearms including absolute prohibitions on particularly dangerous firearms. Before Emerson no federal Court of Appeals had ever recognized the existence of an individual right under the Second Amendment to keep and bear Arms for purely private purposes. 14. National Network to End Domestic Violence (NNEDV) Interest: This network of state coalitions serves as a voice for battered women. NNEDV was instrumental in building support to pass the Violence Against Women Acts of 1994, 2000, and Argument: Domestic violence is a serious problem and firearms only exacerbate an already deadly crisis. Domestic violence accounts for between one-third and one-half of female murders in the US. These murders are most often committed by intimate partners with handguns. According to one study, family violence accounted for 33 percent of all violent crimes and 53 percent of those crimes were between spouses. The Centers for Disease Control and Prevention report that the health-related costs of domestic violence approach $4.1 billion annually. Gun-related injuries account for a large portion of that JFPP20.indb 23 9/8/ :39:42 PM

24 Journal on Firearms & Public Policy Volume Twenty 15. Ne w Yo r k, Ha w a i i, Ma ry l a n d, Massachusetts, Ne w Je r s e y, Puerto Rico Interest: These jurisdictions have restrictive laws on guns and may be fearful that a decision in favor of Heller would result in their laws being challenged or overturned. Argument: The Second Amendment does not apply to the states. It was ratified to ensure that the federal government would not disarm state militias and thereby strip states of a critical component of their reserved sovereignty. Its purpose would be undermined by interpreting the amendment to authorize federal judicial review of state laws regulating weapons. States have established workable rules to protect the right to bear arms. The brief argues that Supreme Court decisions make clear, even after the Fourteenth Amendment, that the Second Amendment is not incorporated against the states. 16. Pr o f e s s o r s o f Criminal Ju s t i c e Dav i d McDo w a l l a n d Ja m e s Alan Fox Interest: Amici assert that the empirical evidence, documented in numerous well-designed and peer reviewed studies, highlights the importance of the D.C. gun law in diminishing handgun violence. Argument: The D.C. ban is an effective law enforcement tool that has promoted the public health and safety by reducing the level of handgun violence. Stricter gun control law in adjacent jurisdictions would make individual gun control laws more effective. Handguns are used in 76.6 percent of murders involving firearms. There was a significant decrease in gun related homicides after the enactment of the ban. 17. Professors of Law Erwin Chemerinsky and Adam Winkler Argument: If the Court finds an individual right to possess guns, then it should subject that right to reasonable regulation. No standard higher than reasonableness should be used because it will place an undue burden on the states and make it difficult for officials to shape law to local circumstances. Forty-two states have constitutional protections on the individual right to bear arms but state supreme courts have continually approved reasonable restrictions on firearms for the purpose of public safety. 18. Professors of Linguistics and English Interest: Amici are three professors who wish to assist the Court in understanding 18th century grammar and the historical meaning of the language in the Second Amendment JFPP20.indb 24 9/8/ :39:42 PM

25 Sh a p i r o Am i c u s Br i e f s in D.C. v. He l l e r Argument: The first clause of the Second Amendment, well regulated Militia, is what linguists call an absolute clause. The Amendment melds the clause A well regulated Militia is necessary to the security of a free State together with the clause The right of the people to keep and bear Arms shall not be infringed to express this thought: Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed. The language tells us that: (a) the right that is protected is the right of the people to serve in the military and keep military weaponry, and (b) the kind of military service that is protected is a well regulated militia. 19. Vi o l e n c e Po l i c y Ce n t e r a n d Po l i c e Ch i e f s f o r Lo s An g e l e s, Mi n n e a p o l i s, Se at t l e Interest: The Violence Policy Center examines the role of firearms in the United States and works to develop policies that reduce gun-related deaths and injuries. Argument: The D.C. ban is a reasonable restriction on the right to bear arms and permissible under the Second Amendment because of the lethality of handguns. The brief strongly relies on Miller, which is read to suggest that there is no right to arms outside of a militia and even that a militia is subject to reasonable restrictions. RESPONDENT S AMICI 1. Ac a d e m i c s: Interest: A number of economists, criminologists, and other scholars, including John Lott and Carl Moody. Argument: Empirical evidence concerning the murder rate in D.C. compared to other places demonstrates convincingly that the District s handgun ban experiment was a failure. This is true even when adjusting for other variables like the economy, and trying to standardize among cities of similar economic structure. 2. Academics for the Second Amendment Interest: Formed in 1992 by law professors, Academics for the Second Amendment s goal is to secure the right to keep and bear arms as a meaningful, individual right. The group includes Joseph Olson, Dan Polsby, Glenn Reynolds, and Randy Barnett. Argument: Reading right of the people to mean only those people serving in a sufficiently-organized militia is inconsistent JFPP20.indb 25 9/8/ :39:42 PM